+ Section 35C(2A) of the Act as amended in 2002 and 2013 makes it apparently clear that the Tribunal was mandated to hear every appeal within a period of three years "where it is possible to do so". These words indicate that though a mandate was given to the Tribunal to decide the appeal within three years, it was not a mandatory provision, but only a directory provision. Consequently, the first, second and third proviso directing the Tribunal to decide the appeal within 180 days in the first instance or within 365 days in the second instance, failing which, the stay order would stand vacated also has to be read as directory in nature. If the main provision cannot be treated as mandatory, the first, second and third proviso also cannot be treated as mandatory.
+ If the Tribunal would not dispose of the appeal within 365 days under the first, second and third proviso of Section 35C(2A) of the Act which was not attributable to the assessee, it would not mean that the Tribunal was divested with its incidental powers in not extending the interim order. The three provisos, in our view, cannot be read as mandatory in nature.
+ The use of the word "shall" was ordinarily indicative of the mandatory nature of the provision, but, having regard to the context in which it was used and having regard to the intention of the legislation, the same could be construed as directory.
+ In the instant case Section 35C(2A) gave a mandate to the Tribunal to decide the appeal within three years "where it was possible to do so". These words indicate the intention of the legislation, namely, that the appeal should be decided as far as possible within three years and therefore, the provision is not conclusive to be determined as mandatory in nature.
+ The use of the word "shall" in the first, second and third proviso though indicative of the mandatory nature of the proviso, has to be construed as directory in consonance with the main provision. The three provisos have to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it.
+ The proviso has to be read in the aforesaid manner which will not only promote justice what would prevent miscarriage of justice, inasmuch as, if the stay order stands vacated after 365 days and the appeal is not decided, the appellant would be put to irreparable loss and harm especially where the fault in not disposing off the appeal was not attributable to him.
+ In any case, the three provisos in sub section (2A) of Section 35C of the Act has now been omitted w.e.f. 6.8.2014 and the bar which was upon the Tribunal to grant limited stay orders has now been removed even though the mandate to decide the appeal within three years, as far as possible, still continues to operate.
+ The omission of the first, second and third proviso to Section 35C(2A) of the Act in effect means that there is no provision for making any further application for extension of stay. The omission of the first, second and third proviso would mean that the appeal filed by an assessee needs to be disposed of within a period of three years and stay orders which have been passed by the Tribunal would continue to remain in force unless it is limited by the Tribunal itself.
+ The contention that the appeals filed before 6.8.2014 would continue to be governed by first, second and third proviso to Section 35C(2A) of the Act in view of the second proviso contained in Section 35F of the Act which came into effect from 6.8.2014 is patently erroneous.
+ The second proviso which was inserted in Section 35F of the Act w.e.f. 6.8.2014 provides that the provision of Section 35F of the Act would not apply to the stay applications and the appeals pending before any appellate authority prior to the commencement of Finance Act 2 of 2014. The second proviso indicates that the Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F(1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance Act (2) of 2014. The appeals which are filed on or after enforcement of the amended provision w.e.f. 6.8.2014 would be governed by the requirement of pre-deposit as indicated therein.
+ The provisos to Section 35C (2A) of the Act has no relevance to the pre-deposit of amount under Section 35F of the Act. Once the proviso to Section 35C(2A) of the Act has been omitted, the embargo upon the Tribunal to limit the stay order for a limited period has now been removed. Consequently, the incidental power of the Tribunal to grant interim relief pending disposal of the appeals is now not confined to a limited period.
